Clashing rights: When indigenous legal systems collide with Canadian law

Clashing rights: When indigenous legal systems collide with Canadian law

Historically, Aboriginal legal systems have received little to no recognition under Canadian law. It was not until the Constitution Actof 1982 that Aboriginal rights were formally recognized and protected under section 35 of the Canadian Constitution. Yet, Aboriginal rights recognized under Canadian law are limited, and subject to interpretation by the courts. In light of this, the Mohawk band council of Akwesasne have developed the first indigenous court system that operates outside of the federal framework. The new court system is unique because it was drafted entirely by the community and it is not attached to the Indian Act or a self-governance agreement with the Canadian government.

The new laws combine aspects of Mohawk values and components of the Canadian justice system. They cover civil matters such as sanitation, tobacco regulation, property, and wildlife conservation. Criminal matters are still reserved for regular provincial or federal courts.

The focus of the Akwesasne laws is on restorative justice and rehabilitation. “This law looks at the person, what offence they committed and how they can restore balance between the (offender), the victim, and the community as well,” says Bonnie Cole, Akwesasne’s sole permanent prosecutor. There are no jail terms. Individuals who are convicted are to use their skills to benefit the community. As a result, this reduces the use of federal or provincial facilities for incarcerating community members.

Challenges still remain in implementing the Akwesasne legal system. It is uncertain whether Akwesasne laws will be recognized under the Canadian legal system. Questions also remain regarding which legal system will prevail in a civil dispute between an Akwesasne and a non-Akwesasne Canadian. Discussions are underway among the Canadian government about the possibility of recognizing the Akwesasne legal system within the Canadian system.

In particular, recognizing and accepting indigenous legal systems can be tremendously beneficial to indigenous communities, especially in the context of access and benefit sharing. An indigenous-created legal system can incorporate principles of access and benefit sharing regardless of whether Canada ratifies and implements the Nagoya Protocolon a domestic level. Indigenous communities can develop and enforce protocols for accessing and benefit sharing of genetic resources and traditional knowledge associated with genetic resources, providing an alternative approach to domestic regulation of genetic resources. Although, the legitimacy of such indigenous laws would depend on whether they are recognized under the Canadian legal system.

If the Akwesasne legal system does receive some form of recognition from the Canadian government, this would represent a huge stepping stone for the Aboriginal right to self-determination. It would reaffirm the inherent nature of Aboriginal rights and their ability to exist beyond a federal framework. This can pave the way towards reconciliation, by helping revitalize the relationship between Aboriginal peoples and Canadian society.

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Photo credit: “Kawehno:ke - Akwesasne Territory” by Will

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Vipal Jain is a Research Assistant with ABS Canada. Her interest in international intellectual property, biotechnology and sustainable development brings her to ABS. Vipal is currently a second year JD law student at the University of Ottawa. She is also the co-founder of BioTown, a nonprofit organization in Ottawa that encourages accessible science. Vipal holds a Bachelor of Science with a specialization in genetics and biotechnology from the University of Toronto.